Federal fisheries officials had “troubling” disagreements with Enbridge Inc. over the company’s interpretation of it responsibility to protect fish habitat along the Northern Gateway oilsands pipeline route before the company submitted its proposal in 2010, internal documents say.

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OTTAWA — Federal fisheries officials were having "troubling" disagreements with Enbridge Inc. over the company's interpretation of its responsibility to protect fish habitat along the Northern Gateway oilsands pipeline route before the company submitted its project proposal in 2010, according to internal documents.

Enbridge was concluding some of the crossings, over an estimated 1,000 waterways, were low risk when fisheries biologists felt the same were medium or high risk to fish and fish habitat, according to emails obtained through the Access to Information Act.

"There is not much movement (by Enbridge) for avoidance of sensitive areas," said one biologist at a February, 2010 meeting, according to a record of that gathering of four officials with the Department of Fisheries and Oceans (DFO).

"Sometimes the proponent is pushing for the cheapest option," said another meeting participant in his reply.

The clash between Enbridge and DFO took shape more than two years before the Harper government, which had been heavily lobbied by Enbridge over concerns about DFO demands, tabled Fisheries Act amendments in its budget implementation bill in April.

Those changes, which according to critics would "gut" DFO's ability to protect habitat, have become a flashpoint in the opposition's battle against bill C-38 during a marathon voting session Wednesday and Thursday in the House of Commons.

Enbridge said one of the biologists, during the 2010 meeting, was designating stream crossings as "low risk" of habitat damage "that should have been medium or high risk."

There were also concerns, cited in documents obtained by Postmedia News, about Enbridge's approach to streams known for having important spawning channels or for wildlife species listed under the federal government's Species at Risk Act (SARA) or under the B.C. government's endangered species list.

A third biologist at the same meeting "stated concern on how the proponent is proposing the crossing methods through streams with SARA-listed species, spawning channels, with no hesitation. This is a concern and was raised at the last meeting with Enbridge."

A week prior to that meeting one of the participants sent an email to colleagues expressing concern about Enbridge's "approach" to habitat.

"The most troubling aspect of Enbridge's approach to deciding pipeline crossing techniques is the lack of consideration to our Hierarchy of Preferences to achieve no net loss of productive capacity," wrote the biologist, referring to the department's longstanding policy to avoid a "net loss" of habitat.

Enbridge's decision-making process doesn't "directly consider" the crossing of highly sensitive habitat, like a spawning area, to automatically trigger consideration of alternative — and usually more expensive — methods of getting a pipeline across the stream, the biologist wrote.

"'Redesign, relocate' does not seem to be automatically considered for designing a pipeline to avoid HADDs (harmful alteration, disruption or destruction) to spawning habitat."

The formal and informal information exchanges with Enbridge, which included joint fly-overs of the 1,177-kilometre Northern Gateway pipeline route from Alberta to the B.C. coast in helicopters, ended when the company filed its application later in 2010 to the joint National Energy Board-Canadian Environmental Assessment Agency panel now considering the controversial $5.5 billion megaproject.

But those concerns are still at play even though the regulatory landscape is dramatically changing as a result of bill C-38, the government's omnibus budget legislation now before Parliament.

The legislation includes sweeping changes to the Fisheries Act, considered Canada's most important and powerful environmental protection law.

The differences between Enbridge and fisheries biologists has become the subject of the joint panel review, with the panel asking DFO on May 27 to provide a list of "important" salmon-bearing waterways where the company and department disagree on risk assessment.

The department responded on June 6 to say it was unable to provide the list, as it hasn't yet done a complete review of all crossings.

"While there may be differences in opinion regarding the risk categorization for some proposed watercourse crossings, DFO will continue to work with Northern Gateway to determine the appropriate risk rating and level of mitigation required," the reply stated.

"DFO is of the view that the risk posed by the project to fish and fish habitat can be managed through appropriate mitigation and compensation measures."

Enbridge, which maintains its proposed pipeline crosses 773 watercourses (from small creeks to major rivers) and not more than 1,000 as DFO states, says on its website that 83 crossings are considered to be highly sensitive based on DFO guidelines.

The company said the pipeline will be buried deeper under sensitive crossings and will use pipelines with thicker walls in those circumstances.

"We will continue to work with the DFO on an ongoing basis and are highly confident that any differences of opinion can be resolved. As DFO has not conducted a complete review of all proposed crossings, it's premature at this time to speculate on future issues that may be raised. It's not appropriate for Enbridge to comment on internal communications between DFO personnel," Jennifer Varey, Enbridge's director of corporate communications said in an email.

"Both the DFO and Northern Gateway have expressed their willingness to work together to the Joint Review Panel and it's clear from DFO's evidence submissions, as well as from our interactions with them, they have confidence that any risk to fish and fish habitat can be mitigated through appropriate measures. It is our understanding that the DFO will continue to participate in the regulatory process and its findings will be included in the final risk assessment. DFO has stated, that in their view, Northern Gateway's approach is flexible enough to be updated if new information becomes available."

Enbridge, according to 2011 briefing notes obtained by the Access to Information Act, complained the department had made "onerous" demands to provide information on its pipeline plans.

And from January 1 to the tabling of recent Fisheries Act amendments company lobbyists met with a little more than100 government and opposition MPs, cabinet ministers and senior political and government officials, including Prime Minister Stephen Harper's chief of staff, Nigel Wright.

One of the items on the company's wish-list, according to the federal lobbyist registry, was the desire for "improved efficiencies in the government secondary permitting processes for Department of Fisheries and Oceans permits . . . for pipeline construction."

Bill C-38 will replace the current ban on any activity that results in "harmful" alteration, disruption or destruction of fish habitat. The government and any observers, especially from industry but also from the environmental movement, say some fisheries officers have been overzealous in enforcing this provision.

It is being replaced by a prohibition against activity that results in "serious" harm to fish that are part of a commercial, recreational or aboriginal fishery, or any fish that supports one of those three fisheries.

"Serious harm" is defined as the "death of fish" or any "permanent" alteration to, or "destruction" of, fish habitat.

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